New Council of Europe Reports Find Shortcomings in Detention Procedures and Conditions in Bulgaria; Safeguards for Detained Children Weakened

The Council of Europe (COE) has recently published two reports on Bulgaria, after sending delegations in the end of 2017 to observe and report on the situation of asylum seekers, migrants and other foreign nationals in Bulgaria.

These delegations produced two very enlightening reports on the current situation in Bulgarian administrative detention facilities for foreign nationals, as well as other facilities like reception centres for asylum seekers, and as suchare significant and useful in pointing at the ways in which Bulgarian authorities could improve. One report was produced by the European Committee for the Prevention of Torture (CPT), and the other was published by the COE’s Special Representative of the Secretary General on migration and refugees (Ambassador Tomas Bocek). Regarding detention centres, both delegations focused on observing the Special Home for the Temporary Accommodation of Foreigners (SHTAF) at Lyubimets, which can host up to 300 occupants at a given time. Neither report includes observations on the facility located on the outskirts of Sofia, in the Busmantsi district.

According to the reports, one of the most concerning issues regarding the Bulgarian detention facilities is that the detained foreign nationals have very limited access to legal aid and knowledge of their rights. The COE reports make this particularly evident when discussing their observations on asylum seekers. Because asylum seekers enter the country irregularly, they are systematically detained in either the Lyubimets or Busmantsi detention centres along with other foreign nationals. Following application for asylum, the persons seeking international protection should be transferred from a detention facility to a reception facility (COE April, 2018). In actuality, the reports note that as a result of the lack of “knowledge on their rights in accessible form”, a number of asylum seekers remain in detention facilities mixed with other detained foreign nationals (COE April, 2018). Regarding legal aid, asylum seekers in reception centres are eligible to request help from the National Legal Aid Bureau. While this is positive, the COE reports demonstrate that the vast majority of foreigners in reception and detention centres are not directly given state-sponsored legal services (COE April, 2018). Rather, and particularly in detention centres, the task of providing legal aid and assistance to the many who have not received it from the National Legal Aid Bureau is carried out by a small number of NGOs such as the Bulgarian Helsinki Committee and the Center for Legal Aid – Voice in Bulgaria (COE April, 2018). Without a larger and systematic form of state-funded legal aid for detainees, it is nearly impossible for those not fortunate enough to receive help from NGOs – whose capacity not sufficient to meet the great need for legal aid – to manoeuvre legal procedures entirely foreign to them.

The COE reports also importantly illustrate how the lack of legal aid and information on rights is tied to restricted interpretation, in relation to rights and legal procedures, provided to the occupants of these detention facilities. While it is commendable that non-state actors, such as the UNHCR, provide posters to the detention facilities, it also serves to exemplify the currently limited level of interpretation. The posters outline rights for the detainees, but they only do so in three languages (Bulgarian, English, Arabic). In reality, numerous detainees represent a variety of nationalities, and thus, are only familiar with other languages, such as Farsi (COE May, 2018). In its September 2017 delegation, for instance, the CPT observed over 200 detainees with 19 distinct nationalities. Thus, even though there is evidence of some information on rights provided to the detainees, it is crippled by the fact that it is only available to a limited number of foreign nationals. Unfortunately, it is not exclusively in detention facilities where the interpretation is limited. In Commissioner Bocek’s report, it was concluded that limited interpretation exists in all phases of status determination for asylum seekers, implying that whether one is a detained foreigner at Busmantsi and Luybimets, or one is already in procedure for asylum, there is a serious deficit of explanation and interpretation during registration, interviews, court procedures, and document signings (COE 19 April, 2018). Moreover, it was also uncovered that many cases of detained asylum seekers who had made applications were delayed as long as 10 months before being transferred to a reception facility specifically because of a gap in communication between authorities and foreigners (COE 19 April, 2018). Understandably, this produces great frustration among the foreign nationals in these facilities.

Both COE reports point out complaints of ill-treatment on the part the guards and staff toward the detainees. These types of ill-treatment range from the physical (e.g. punches and kicks) to subtler forms of disrespectful behaviour and a general unresponsiveness. Evidently, the lack of interpretation for the detainees of various nationalities is highly conducive to producing an environment of ill-treatment. Most of the physical abuse, for instance, occurs at night when many of the detainees attempt to request use of toilets; the CPT states that the physical ill-treatment occurs off camera in the basement or near the toilets (COE May, 2018). Furthermore, the abuse seems to occur typically when the detainees attempt to request something from the guards, and the general lack of understanding between the two parties leads to eventual confrontations. Similarly, the general unresponsiveness noted by both reports is the result of the staff simply not understanding what it is that detainees are often calling out or asking for; the CPT delegation noted that only some staff knew English and even fewer had only basic notions of Arabic (COE May, 2018). It is very surprising to find a facility accommodating foreigners from a variety of nationalities that does not have a training regime for staff to communicate with the detainees, or at the very least a comprehensive way for detainees to learn the rules and expectations of the facility; facility rules exist but are exclusively in Bulgarian. Thus, the CPT delegation recommended that a “serious effort” should be made to improve staff language and cultural interaction training (COE May, 2018). As mentioned, the physical abuse that occurs at night often relates to detainees attempting to use the toilet. The need for detainees to have to summon staff to arises from the fact that at night dormitories are locked, consequently preventing access to the toilet until they are unlocked in the morning again. Of all the poor conditions to which these foreign nationals are exposed during their time in administrative detention, it is perhaps the restricted toilet use that borders most closely human and degrading treatment. Thus, among other specific recommendations, the CPT requested that the Lyubimets detention centre make toilets available at all times, a request that arguably should never have to specifically made.

Another issue in the reports worth mentioning is the limited access to medical care that the detained foreign nationals have. While there was a mention of “24/7” on site medical coverage, there was no access to specialists like dentists, psychiatrists, and gynaecologists (COE May, 2018). Beyond this absence of specialists, even more surprising is the fact that foreign nationals have to pay for whatever medicine they require, rather than have the facility simply provide it to them.

Lastly, there are several legal and procedural issues that the COE has brought to light through their delegations. First, there is the problem of detention orders. The Bocek report in particular mentions how a majority of detainees waiting for their return with whom the delegation spoke were “not able to show us a detention order” (COE April, 2018). This is indeed quite a serious finding, calling into question the legality of Bulgaria’s procedure of removal of foreigners. On a positive note, the report mentions that an amendment to the Law on Foreigners was introduced in December of 2017, stating the requirement, among others, that the foreigner be issued a copy of the return order that includes the reasons for the detention (COE April, 2018); it remains to be seen whether this amendment has been implemented in practice.

A major concern in regards to legislation highlighted by the Bocek report relates to the detention of minors. As of June 6 2018, new amendments relating to the detention of minors have become effective. According to the report, the safeguards for detaining minors have been greatly weakened through these changes:

“The amendments introduced in December 2017, which will become effective on 6 June 2018, have, regrettably, weakened the standard of protection for unaccompanied children. The specific safeguards regarding detention of unaccompanied children only as a last resort and after consideration of the best interests of the child are no longer provided for in the law. Accompanied foreign children can also be detained following their illegal entry or stay in Bulgaria for up to 30 days in special areas separate from adult foreigners, but the law does not require a best interests assessment and does not provide that this measure is applied only as a last resort measure.(Bocek report, p. 13)”

It is important once again to reiterate how significant these delegations and subsequent reports of the COE are. They have brought an up to date understanding of the situation in a number of facilities for foreign nationals in Bulgaria, including both the detention and reception centres. Yet, while it is excellent news to see that the COE has made serious recommendations, only time will tell if the improvements outlined in their reports will be implemented in practice or not. NGOs will continue to provide support and services to the detained foreigners, but it is primarily for the Ministry of the Interior, which is responsible for running the detention facilities, to address the criticisms and recommendations made in the reports.

Andreas Aravossitas is presently an intern with the Center for Legal Aid – Voice in Bulgaria. Andreas is pursuing a Master’s Degree in European and Russian Affairs at the University of Toronto, Center for European, Russian, and Eurasian Studies (CERES), Toronto, Canada. He also an Undergraduate Arts and Science Degree in Criminology.